The New Constitutional Order and the National Surveillance State

JB

Both Sandy and I offered a theory back in 2001 about how constitutional change occurs through judicial interpretation. It's the theory of "partisan entrenchment," and roughly speaking, it holds that constitutional change stays in rough correspondence to the agenda of the national political coalition because of the appointments process. You can find more about the original version of the theory here.

In our Fordham talk, we address some of the things we learned in the five years since we first offered the theory. The most important event, of course, was 9/11 and the reconstitution of politics around the war on terror. One of the key points we'll be making tomorrow is that many constitutional changes are driven by larger forces that both parties find themselves responding to. Although the Republicans happened to be in power immediately following 9/11, we believe that the long term changes in constitutional understandings and institutions that are now occurring would have happened even if the Democrats were in power, although the details might be different in important respects. For example, whether or not President Gore would have conducted the NSA surveillance program in secret without informing Congress, or would have specifically come to Congress in 2001 for a revision of FISA to allow it, we think that there would be reforms in intelligence gathering process to make new forms of surveillance legal. That is not to say that there are no differences between the Bush Administration and a hypothetical Gore Administration on national security-- we suspect there would be many. But both would have participated in the long term trend in institution building we think is in the offing.

In our paper we describe the rise of what we call a National Surveillance State which occurs in response to the felt needs of warfare and foreign policy in the 21st century. Philip Bobbitt has pointed out that the geopolitical demands of war and foreign policy often provide the impetus for changes in domestic political arrangements, because the way that the state faces the world outside it is often reflected in the way that it faces its citizens. This National Surveillance State involves a significant increase in bureaucracies devoted to promoting domestic security and (as its name implies) gathering of intelligence and surveillance using all of the devices that the digital revolution allows.

Data mining--- through which agencies like the NSA can collect and collate vast amounts of conversations, e-mails and Internet traffic between individuals within the United States and foreign countries,-and, for all we know, substantial amounts of such communications within the United States as well--is the consequence of new developments in high-speed computers plus complex mathematical programs that allow computers to recognize speech patterns, e-mail messages, or Internet traffic patterns that indicate possible terrorist activity. Comprehensive data mining and other new forms of surveillance become especially important given the development of what Bobbitt terms "virtual states," geographically amorphous collectivities that, because of access to weapons of mass destruction, can present basically formidable if not undeterrable threats to the United States. Virtual states, because they lack geographical locations, must be nipped in the bud as soon as their activities and plans can be identified. This necessitates constant surveillance and processing of vast amounts of information because of the perceived costs of making even a single mistake in failing to identify a threat.

We do not doubt that similar concerns have led the Bush Administration to cut corners on international and domestic law concerning detention and interrogation of prisoners. However, we argue that the development of increasingly elaborate systems of surveillance is far more characteristic of the kinds of government policy necessitated by technological change. Torture and prisoner mistreatment have been around as literally as long as warfare itself-what is new is the harnessing of digital technologies to produce a Leviathan-like information processing machine. A second key change, we think, is the increasing merger between law enforcement and military security in the domestic arena, precisely because the domestic arena increasingly becomes part of the modern battlefield.

From a constitutional perspective, the National Surveillance State involves a further shift of institutional power and authority from Congress to the Presidency. There is no serious possibility, we think, of completely forestalling this shift, which, after all, can be said to have been underway at least since the end of World War II. Rather, the only questions are how much further executive aggrandizement will occur and whether new institutions can be adapted to prevent the inevitable risks that will accompany this shift.

The first is the risk of harm to individual privacy and civil liberties. The second is the inevitable dangers of concentrating too much power in one branch of government without accountability and transparency. The third risk, which stems from the second, is the danger of informational insularity, in which the executive is unable or unwilling to acknowledge and assimilate new information that requires it to reshape and redirect its plans. Irving Janis some years ago coined the term "group think" to refer to institutional tendencies toward such insularity, and recent work in behavioral psychology has reinforced such concerns. One advantage of a system of separated powers, especially if one of the competing institutions includes strong individuals from the opposition political party, is that the other branches, because of their natural competition, consistently force new information and impose hard learned lessons on the others. From this perspective a constitutional system is also a system of information gathering and a system of learning. But if one branch-the Presidency-- need pay no attention to the others, or can thoroughly dominate them through appeals to party loyalty, as has definitely been the case during the Bush Administration, then it will not be forced to confront the recalcitrant information about the world the others have the incentive and the opportunity to provide.

The National Surveillance State arises from a real concern: the enhanced need for processing information about the outside world and reacting appropriately to it given the changes in foreign affairs and warfare. The danger is that the concentration of power in this new state will prove particularly inept at processing the relevant information. The intelligence failures in the run-up to the Iraq war are an obvious and worrisome example.

The need for the National Surveillance State arises from war and foreign policy, but its consequences will reverberate throughout domestic politics. Courts will play a role in determining the boundaries of this emerging constitutional construction, but for the most part, we predict, they will legitimate and bless it, much as they legitimated and blessed the administrative state, the welfare state, and the national security state in previous years.

There is no particular reason to view the constitutional debate over the National Surveillance State as strongly partisan. For better and for worse, there may be no meaningful division between the Democratic and Republican parties with regard to the larger imperatives for and the broad outlines of the National Surveillance State, and indeed, the constitutional problems that these institutions present may cross cut existing party alliances. The difference between the two major parties will consist we think, in how new forms of governance are implemented, what kinds of accountability and transparency mechanisms are built into the new institutional framework, and how the balance between efficacy and civil liberties is struck. Even if some form of the National Surveillance State is in our future, a great deal turns on the details of what kind of state it becomes. And that is why it will matter a great deal who holds office and who is appointed to the federal courts in the next decade.